Citation NR: 9622910
Decision Date: 08/09/96 Archive Date: 08/16/96
DOCKET NO. 94-12 671 ) DATE
)
)
On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) in
Baltimore, Maryland
THE ISSUES
1. Entitlement to an increased rating for service-connected
psoriasis, currently evaluated as 10 percent disabling.
2. Entitlement to an increased (compensable) rating for
service-connected bilateral hearing disability.
REPRESENTATION
Appellant represented by: The American Legion
ATTORNEY FOR THE BOARD
M. E. Larkin, Associate Counsel
INTRODUCTION
The veteran served on active duty from May 1979 to June 1982.
This matter is before the Board of Veterans’ Appeals (Board)
on appeal from a January 1994 rating action of the RO.
The veteran’s accredited representative has asserted that the
veteran’s claims for service connection for hepatitis and
related conditions were not addressed by the RO or certified
for appeal to the Board. The representative requested that
those issues be referred to the RO for adjudication. The
Board notes that the RO contacted the veteran in December
1993 to inform him of the evidence required to develop that
claim. The veteran has not responded to the December 1993
letter. If he wishes to pursue his claims for service
connection for hepatitis and related issues, he must inform
the RO.
(The issue of increased rating for psoriasis is the subject
of the remand portion of this document.)
CONTENTIONS OF APPELLANT ON APPEAL
The veteran contends that his service-connected hearing
disability is more severe than the current rating indicates.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991 & Supp. 1995), has reviewed and considered
all of the evidence and material of record in the veteran's
claims file. Based on its review of the relevant evidence in
this matter, and for the following reasons and bases, it is
the decision of the Board that the preponderance of the
evidence is against the claim for an increased rating for the
bilateral hearing disability.
FINDINGS OF FACT
1. All relevant evidence necessary for an equitable
disposition of the veteran’s appeal for a compensable
evaluation for the service connected bilateral hearing
disability has been obtained.
2. The veteran’s audiometric testing results of December
1993 yield findings which are consistent with literal
designations of level I for each ear.
CONCLUSION OF LAW
The criteria for the assignment of an increased (compensable)
rating for the service-connected bilateral hearing disability
have not been met. 38 U.S.C.A. §§ 1155, 5107, 7104 (West
1991 & Supp. 1995); 38 C.F.R. §§ 3.102, 4.7, 4.85, including
Diagnostic Code 6100 (1995).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
The Board finds the veteran's claim for increased
compensation benefits is "well grounded" within the meaning
of 38 U.S.C.A. § 5107(a). The United States Court of
Veterans Appeals (Court) has held that, when a veteran claims
a service-connected disability has increased in severity, the
claim is well grounded. Proscelle v. Derwinski, 2 Vet.App.
629 (1992). The Court has also stated that where entitlement
to compensation has already been established and an increase
in the disability rating is at issue, the present level of
disability is of primary concern. Francisco v. Brown, 7
Vet.App. 55 (1994). The Board further finds that the matter
has been adequately developed for the purpose of appellate
review.
The veteran’s service-connected bilateral defective hearing
is currently evaluated as noncompensably disabling. The
results of a VA audiometric examination performed in December
1993 reported pure tone air conduction thresholds as 5, 5, 65
and 70 decibels in the right ear at 1000, 2000, 3000 and 4000
hertz, respectively. Like measurements of the left ear were
5, 10, 60 and 70 decibels. The average of the pure-tone
thresholds of the right ear was 36 decibels; the average of
the left was 36 decibels. A speech discrimination score of
96 percent was recorded for each ear.
Evaluations for defective hearing are based upon organic
impairment of hearing acuity as measured by the results of
controlled speech discrimination tests, along with the
average hearing threshold level as measured by pure tone
audiometry tests in the frequencies of 1000, 2000, 3000 and
4000 cycles per second. 38 C.F.R. § 4.85 (1995).
When the prescribed rating criteria are applied to the
results of the veteran’s December 1993 audiometric test,
numeric scores of I are obtained for each ear. Table VII of
§ 4.85 provides for the assignment of a noncompensable
evaluation under Code 6100 when the veteran has these numeric
scores. Consequently, an increased evaluation for the
veteran’s defective hearing is not warranted under the
provisions of the rating schedule.
Consideration has been given to the provisions of 38 C.F.R.
Parts 3 and 4, whether or not they were raised by the
appellant, as required by Schafrath v. Derwinski, 1 Vet.App.
589 (1991). However, the Board has applied all the
provisions of Parts 3 and 4 that would reasonably apply in
this case.
ORDER
An increased rating for the service-connected bilateral
hearing disability is denied.
REMAND
The veteran contends that his service-connected psoriasis is
more severe than the current evaluation indicates. He
maintains that he was told by a physician that his condition
was “severe” and would gradually worsen. The veteran’s
representative observed that the veteran has not been
afforded a VA examination for the purpose of evaluating the
severity of his condition and requests that such an
examination be undertaken.
The Board agrees that an examination is in order prior to
appellate disposition. VA has a duty to assist the veteran
in the development of facts pertinent to his claim.
38 U.S.C.A. § 3.103(a) (1991). The development of facts
includes a “thorough and contemporaneous medical examination,
one which takes into account the records of prior medical
treatment, so that the evaluation of the claimed disability
will be a fully informed one.” Green v. Derwinski, 1
Vet.App. 121,124 (1991).
Therefore, the case is REMANDED to the RO for the following
development:
1. The RO should take appropriate steps
to contact the veteran in order to obtain
the names and addresses of all medical
care providers who treated him for
complaints regarding his service-
connected psoriasis since 1993. After
securing the necessary releases, the RO
should attempt to obtain copies of all
records from the identified treatment
sources.
2. The veteran should be afforded a VA
dermatology examination in order to
ascertain the current severity of the
service-connected skin disorder. All
indicated testing should be done in this
regard. The claims folder should be made
available to the examiner for review. In
connection with his evaluation, the
examiner should report detailed findings
in regard to the skin manifestations and
should comment on whether the veteran is
experiencing constant exudation or
itching, extensive lesions or marked
disfigurement due to the skin condition.
3. After the development requested above
has been completed, the RO should again
review the veteran’s claim. If any
benefit sought on appeal remains denied,
the appellant and representative should
be furnished with a supplemental
statement of the case and given the
opportunity to respond thereto.
Thereafter, the case should be returned to the Board, if in
order. The Board intimates no opinion as to the ultimate
outcome of this case. The appellant need take no action
unless otherwise notified.
RIPLEY P. SCHOENBERGER
Acting Member, Board of Veterans' Appeals
The Board of Veterans' Appeals Administrative Procedures
Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, 741
(1994), permits a proceeding instituted before the Board to
be assigned to an individual member of the Board for a
determination. This proceeding has been assigned to an
individual member of the Board.
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991 & Supp. 1995), a decision of the Board of Veterans’
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans’ Judicial Review Act, Pub.
L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The date
that appears on the face of this decision constitutes the
date of mailing and the copy of this decision that you have
received is your notice of the action taken on your appeal by
the Board of Veterans’ Appeals. Appellate rights do not
attach to those issues addressed in the remand portion of the
Board’s decision, because a remand is in the nature of a
preliminary order and does not constitute a decision of the
Board on the merits of your appeal. 38 C.F.R. § 20.1100(b)
(1995).
- 2 -